PANKAJ N SHAH, MUMBAI V. DCIT 12(2), MUMBAI

ITA 3113/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48404 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2001-2002
• Appeal Filed On: 21-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJIT KUMAR SINHA
• Assessee Lawyers: K SHIVARAM; AJAY R SINGH
• Keywords: Search and seizure
• Section: 142(1); 153A; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, C, MUMBAI BEFORE SHRI J SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ITA NO. 3113 AND 3114/MUM/2010 (ASSESSMENT YEARS- 2001-02 AND 2002-03) AND ITA NO. 3115 TO 3117/MUM/2010 (ASSESSMENT YEARS- 2004-05 TO 2006-07) PANKAJ N SHAH B-112, ROTEX SHOPPING CENTRE STATION ROAD, NEAR PRASHANT HOTEL GOREGAON (W), MUMBAI-400062 PAN:AACPS4038G .APPELLANT VS DCIT 12(2) MUMBAI ..RESPONDENT ASSESSEE BY : S/SHRI K SHIVARAM AND A JAY R SINGH REVENUE BY : SHRI AJIT KUMAR SINHA O R D E R PER VIJAY PAL RAO THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINS T THE FIVE SEPARATE ORDERS OF THE CIT(A), DATED 06 .11.2008 ARISING FROM THE ASSESSMENT ORDERS PASSED U/S 153A R.W.S.144 OF THE ACT. FOR THE ASSESSMENT YEARS AS SESSMENT YEARS- 2001-02 AND 2002-03 AND ASSESSMENT YEARS- 20 04-05 TO 2006-07 RESPECTIVELY. 2. THE ASSESSEE HAS RAISED COMMON GROUNDS IN ALL T HESE APPEALS WHICH ARE AS UNDER : ITA NO. 3113 TO 3117/MUM/2010 2 1. THE LD. CIT(A) ERRED IN CONFIRMING THE ASSESSMENT MADE U/S 144 OF THE IT ACT, 1961 AND DISMISSING THE APPEAL IN THE DECISION DELIVERED EX- PARTE 2. THE LD CIT(A) FAILED TO NOTE THAT THE APPELLANT WAS NOT INVOLVED IN THE BANKING TRANSACTIONS AND DEMAT ACCOUNTS AND THE LEAD ANXD ONLY PLAYER WAS ONE SHRI JALAJ BATRA; 3. THE. LD.CIT(A) FAILED TO NOTICE THAT THE LARGE DEPOSITS IN THE ACCOUNTS MAINTAINED AND OPERATED BY SHRI JALAJ BATRA WERE NOT THE APPELLANTS INCOME AND THAT SHRI JALAJ BATRA HAD ACCEPTED THAT THE TRANSACTIONS IN THE TWO BANK ACCOUNTS WITH HDFC BANK AND ONE ACCOUNT ABN AMRO BANK AS WELL AS DEMAT ACCOUNT WITH INDIA BULLS WERE MADE BY HIM (PARA 9.4 OF THE ORDER OF ASSESSMENT DATED 31.12.2007 OF SHRI JALAJ I BATRA); 4. THE LD. CIT(A) FAILED TO CONSIDER THE SUBMISSIONS MADE IN THE STATEMENT OF ACTS ANNEXED T O THE MEMORANDUM OF APPEAL AND COPY OF THE ORDER OF ASSESSMENT OF JALAJ BATREA FILED WITH WRITTEN SUBMISSIONS FOR APPEALS; 5. THE LD. CIT(A) FAILED TO APPRECIATE THAT THE SEARCH AT THE APPELLANTS PLACE DID NOT RESULT IN ANY SEIZURE; 6.` THE LD. CIT(A) FAILED TO NOTE THAT THE AO HAS TREATED DEPOSITS IN THE BANK ACCOUNTS AS THE APPELL ANT INCOME WITHOUT REDUCING THE DEPOSITS BY WITHDRAWALS AND ALSO WITHOUT SHOWING THAT THE DEPOSIT REPRESENT THE APPELLANTS INCOME OF THE YEAR (PARA 9.3 OF THE ORDER OF THE ASSESSMENT OF JALAJ BATRA) 7. THE LD. CIT(A) WIT WIDE RANGING POWERS CONFERRED BY THE STATUTE, POWERS CO TERMINUS WITH T HE AO, FAILED TO EXERCISE THE POWERS IN THE INTEREST JUSTICE AND FAIR PLAY 3. BRIEF FACTS OF THE CASE ARE THAT THE SEARCH AND SEIZURE ACTION U/S 132 WAS CARRIED OUT IN THE CASE JALAJ B ATRAS GROUP CONCERNED ON 10.2.2006. THE SEARCH WAS ALSO CONDU CTED IN ITA NO. 3113 TO 3117/MUM/2010 3 THE ASSESSEES OWN CASE ON 26.10.2005. ON RECEIPT OF RELEVANT DOCUMENTS FROM THE INVESTIGATION WING, T HE AO INITIATED THE ASSESSMENT PROCEEDINGS U/S 153A OF TH E ACT IN ASSESSEES CASE FOR THE YEARS UNDER CONSIDERATION. THE AO ISSUED NOTICE U/S 153A ON 14.05.2007 CALLING FOR ASSESSEES RETURN OF INCOME IN THE PRESCRIBED FORM. THE ASSESS EE DID NOT RESPOND TO THE NOTICE ISSUED U/S 153A AND NO RETUR N OF INCOME WAS FILED. THE AO THEN ISSUED NOTICE U/S 142(1) ON 28.7.2007, AGAIN THERE WAS NO RESPONSE FROM THE ASS ESSEE TO THE NOTICE ISSUED U/S 142(1). THE AO AGAIN WRITTEN FINAL LETTER DATED 5.11.2007 TO THE ASSESSEE AND THEREAFTER ONE FINAL OPPORTUNITY WAS GIVEN ON 16.11.2003. BUT THE ASSES SEE DID NOT RESPOND TO THE NOTICE AND HENCE THE AO COMPLE TED THE ASSESSMENT U/S 144 R.W.S.153A OF THE ACT BY DETERM INING THE UNDISCLOSED INCOME FOR THE ASSESSMENT YEARS UNDER CONSIDERATION. THE ASSESSEE FILED APPEALS AGAINST THE ASSESSMENT ORDERS BEFORE THE CIT(A) AGAINST THE EX-PARTE ASSESSMENT. EVEN BEFORE THE CIT(A) THE ASSESSEE DI D NOT APPEAR OR MADE ANY REPRESENTATION DESPITE VARIOUS NOTICES ISSUED TO THE ASSESSEE. CONSEQUENTLY, THE APPEALS OF THE ASSESSEE WERE DISMISSED VIDE IMPUGNED ORDER 4. WE HAVE HEARD THE LEARNED AR AS WELL AS THE LEAR NED DR AND CONSIDERED THE RELEVANT RECORD. THE LEARNED AR OF THE ITA NO. 3113 TO 3117/MUM/2010 4 ASSESSEE HAS SUBMITTED THAT DUE TO PERSONAL DIFFI CULTIES THE ASSESSEE COULD NOT APPEAR BEFORE THE LOWER AUTHORIT IES. HE HAS FURTHER POINTED OUT THAT THE SAME AMOUNT HAS B EEN ASSESSED IN THE HANDS OF ONE SHRI JALAJ I BATRA AN D WHO HAS ACCEPTED ASSESSMENT OF THE SAME AMOUNT IN HIS HAND S. THEREFORE, ASSESSMENT OF THE SAME AMOUNT IN THE HANDS OF THE ASSESSEE WOULD AMOUNT TO DOUBLE TAXATION. HE H AS POINTED OUT THE ASSESSMENT ORDER DATED 31.12.2007 FOR THE ASSESSMENT YEAR 2002-03 IN CASE OF SHRI JALAJ BATR A AS PASSED UNDER SECTION 153A R.W. SECTION 144. HE HA S FURTHER SUBMITTED THAT THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUNITY TO REPRESENT HIS CASE BEFORE THE LOWER AUTHORITIES AND IT IS ALSO TO BE VERIFIED THAT THE SAME AMOU NT HAS BEEN TAXED IN THE HANDS OF SHRI JALAJ BATRA, THEN THE SA ME CANNOT BE TAXED IN THE HANDS OF THE ASSESSEE. 5. ON THE OTHER HAND, THE LEARNED DR HAS OBJECTED T O THE REQUEST OF THE ASSESSEE FOR GIVING ONE MORE OPPORTU NITY. HE HAS SUBMITTED THAT DESPITE SUFFICIENT OPPORTUNITIES GIVEN BY THE AO AND THE CIT(A), THE ASSESSEE DID NOT COME FORWARD, THEREFORE, THE ASSESSEE IS NOT ENTITLED FOR ANOTHER OPPORTUNITY. 6. AFTER CONSIDERING THE RIVAL CONTENTIONS AND RELE VANT RECORD, WE FIND THAT THE ASSESSEE DID NOT APPEAR BE FORE THE ITA NO. 3113 TO 3117/MUM/2010 5 AO AS WELL AS BEFORE THE CIT(A) AND ALSO DID NOT FILE RETURN OF INCOME IN THE PRESCRIBED FORM IN RESPONSE TO THE N OTICE U/S 153A. THEREFORE, THE ASSESSMENT FOR ALL THESE YEAR S UNDER CONSIDERATION WERE FRAMED BY THE AO ON THE BASIS O F MATERIAL AVAILABLE BEFORE THE AO RECEIVED FROM THE INVESTIGA TION WING. THE CIT(A) HAS ALSO DISMISSED THE APPEALS OF THE AS SESSEE BECAUSE NOBODY HAS APPEARED BEFORE THE CIT(A) DESP ITE SEVERAL NOTICES. SINCE THE AMOUNT ASSESSED IN THE HANDS OF THE ASSESSEE REPRESENT DEPOSITS IN THE BANK ACCOUNT FOR THE PURPOSE OF DEALING IN SHARES AND AS POINTED OUT BY THE LEARNED AR THAT THE SAME HAS BEEN ASSESSED IN THE HANDS OF ONE SHRI JALAJ BATRA, THEREFORE, THIS FACTS IS REQUIRED TO B E VERIFIED. ACCORDINGLY, IN THE INTEREST OF JUSTICE , WE GRANT ONE MORE OPPORTUNITY TO THE ASSESSEE TO APPEAR BEFORE THE C IT(A) FOR REPRESENTING HIS CASE. THE ASSESSEE ACCORDINGLY DI RECTED TO APPEAR BEFORE THE CIT(A) ALONG WITH THIS ORDER A ND THEN TAKE THE NOTICE IN DASTI FOR THE NEXT DATE OF HEARING. IN CASE THE ASSESSEE FAILS TO APPEAR BEFORE CIT(A) OR TAKES UNNECESSARY ADJOURNMENTS, THE OPPORTUNITY GRANTED B Y US WILL STAND WITHDRAWN. ACCORDINGLY, WE REMIT THIS ISSUE TO THE RECORD OF THE CIT(A) FOR ONE MORE OPPORTUNITY. ITA NO. 3113 TO 3117/MUM/2010 6 7. IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE A LLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 13TH APRIL, 2 011 SD SD (J.SUDHAKAR REDDY) (VIJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, ON THIS 13TH DAY OF APRIL, 2011 SRL:1411 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI